Available at: https://scholarlycommons.law.emory.edu/ebdj/vol40/iss3/4
Abstract:
It is increasingly difficult for people who need consumer bankruptcy relief to access it. Ironically, many of the people who most need it cannot afford it, and oftentimes they come from underserved communities. Large-scale solutions to this access to consumer bankruptcy problem have been discussed, and even proposed, but not yet implemented. While law schools cannot solve the access problem without congressional intervention, they can, at least, take steps to improve the status quo. One way law schools can address this problem is to create experiential programs focusing on consumer bankruptcy.
These types of programs offer a dual benefit. They offer a partial solution to the access problem by providing free or low-cost bankruptcy assistance to qualified members of the community on one hand, and practical learning opportunities for law students on the other. Right now, only seventeen law schools approved by the American Bar Association (the “ABA”) across nine states offer consumer bankruptcy experiential opportunities to their students. There is incredible potential for growth in this area. To be more specific, there are 180 other ABA-approved law schools that do not currently have such a program. By creating one, these law schools can add to the experiential opportunities available to their students while simultaneously increasing their communities’ access to bankruptcy relief.
Ideally, each law school in the country should offer limited bankruptcy legal services to their communities. In Part I of this Essay, I explore the role of consumer bankruptcy experiential programs in law schools. These programs offer an ideal mix of transactional and litigation experiences, which help students become more practice-ready upon graduation while giving back to their community. In Part II of this Essay, I offer to law schools my tried-and-true formula for creating consumer bankruptcy experiential programs. I have created two of these programs to date, one in Florida, and the other more recently in Georgia. These programs can be surprisingly resource-neutral and quite simple for law schools to implement. If this Essay inspires just one more law school to create their own consumer bankruptcy program, then I have accomplished my central purpose for writing it.
Commentary:
In addition to the benefits that the author identifies as resulting from law school bankruptcy clinics, there are certainly other others, including that not only would law student learn about representing real-life debtors, but this would increase the access of law school professors to actual debtors and cases as well, perhaps bringing them down from their often remote Ivory Tower perspectives, which often fail to match actual bankruptcy law or practice.
Perhaps by exposing more law students to consumer bankruptcy with its challenges, both intellectual and personal, and its joys, again both intellectual and personal, this could serve to increase the number of young and diverse attorneys that are interested in this area of the law. The Bankruptcy IDEA Consortium might find that assisting in starting clinics to be an excellent way of working towards its "continuing efforts to achieve a diverse bankruptcy community, promote diversity, equity, and inclusion, and facilitate opportunities for current and future bankruptcy practitioners." (Especially beyond just the Chapter 11 bar.)
Law students will need, to comply with ABA and state bar requirements, the assistance and oversight of practicing consumer attorneys. And where the author recognized that finding consumer bankruptcy attorneys to assist is "much easier said than done", perhaps the best place to start would be with NACBA, as that is where the best consumer bankruptcy attorneys can be found. (I would be more than happy to be a first point of contact.)
Even then, many consumer bankruptcy attorneys might, despite the best of altruistic inclinations, be hesitant to not only expend time serving as mentor, but also fear that they are both only training the future competition but also diverting potential current (and paying) clients to a free clinic. These concerns can, however, be not just assuaged but flipped, since as these clinics should, as the paper recognizes, focus on assisting clients that are " suitable for non-complex, no-asset chapter 7 cases" , there will be many potential clients that neither qualify for Chapter 7, whether because of assets, income or other reason, or would be better served by filing Chapter 13, whether to save a house from foreclosure, to obtain the more favorable mean test and liquidation analyses, etc. Those clients with either complicated Chapter 7 cases or in need of a Chapter 13 bankruptcy could and should be referred to the supervising consumer attorneys.
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